End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

New Mexico Rules of Professional Conduct

[1] The advocate's task is to
present the client's case with persuasive force. Performance of that duty while
maintaining confidences of the client is qualified by the advocate's duty of
candor to the tribunal. However, an advocate does not vouch for the evidence
submitted in a cause; the tribunal is responsible for assessing its probative
value.

Representations by a Lawyer

[2] An advocate is responsible
for pleadings and other documents prepared for litigation, but is usually not
required to have personal knowledge of matters asserted therein, for litigation
documents ordinarily present assertions by the client, or by someone on the
client's behalf, and not assertions by the lawyer. Compare Rule
3.1. However, an assertion purporting to be on the lawyer's own knowledge,
as in an affidavit by the lawyer or in a statement in open court, may properly
be made only when the lawyer knows the assertion
is true or believes it to be true on the basis
of a reasonably diligent inquiry.
There are circumstances where failure to make a disclosure is the equivalent
of an affirmative misrepresentation. The obligation prescribed in Rule
1.2(d) not to counsel a client to commit or assist the client in committing
a fraud applies in litigation. Regarding compliance with Rule 1.2(d), see the
Comment to that Rule. See also the Comment
to Rule 8.4(b).

Misleading Legal Argument

[3] Legal argument based on
a knowingly false representation of law constitutes
dishonesty toward the tribunal. A lawyer is not required to make a disinterested
exposition of the law, but must recognize the existence of pertinent legal authorities.
Furthermore, as stated in paragraph (a)(3), an advocate has a duty to disclose
directly adverse authority in the controlling jurisdiction which has not been
disclosed by the opposing party. The underlying concept is that legal argument
is a discussion seeking to determine the legal premises properly applicable
to the case.

False Evidence

[4] When evidence that a lawyer
knows to be false is provided by a person who
is not the client, the lawyer must refuse to offer it regardless of the client's
wishes.

[5] When false evidence is offered
by the client, however, a conflict may arise between the lawyer's duty to keep
the client's revelations confidential and the duty of candor to the court. Upon
ascertaining that material evidence is false, the lawyer should seek to persuade
the client that the evidence should not be offered or, if it has been offered,
that its false character should immediately be disclosed. If the persuasion
is ineffective, the lawyer must take reasonable
remedial measures.

[6] Except in the defense of
a criminal accused, the rule generally recognized is that, if necessary to rectify
the situation, an advocate must disclose the existence of the client's deception
to the court or to the other party. Such a disclosure can result in grave consequences
to the client, including not only a sense of betrayal but also loss of the case
and perhaps a prosecution for perjury. But the alternative is that the lawyer
cooperate in deceiving the court, thereby subverting the truth-finding process
which the adversary system is designed to implement. See Rule
1.2(d). Furthermore, unless it is clearly understood that the lawyer will
act upon the duty to disclose the existence of false evidence, the client can
simply reject the lawyer's advice to reveal the false evidence and insist that
the lawyer keep silent. Thus the client could in effect coerce the lawyer into
being a party to fraud on the court.

Perjury by a Criminal Defendant

[7] Whether an advocate for
a criminally accused has the same duty of disclosure has been intensely debated.
While it is agreed that the lawyer should seek to persuade the client to refrain
from perjurious testimony, there has been dispute concerning the lawyer's duty
when that persuasion fails. If the confrontation with the client occurs before
trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be
possible, however, either because trial is imminent, or because the confrontation
with the client does not take place until the trial itself, or because no other
counsel is available.

[8] The most difficult situation,
therefore, arises in a criminal case where the accused insists on testifying
when the lawyer knows that the testimony is perjurious.
The lawyer's effort to rectify the situation can increase the likelihood of
the client's being convicted as well as opening the possibility of a prosecution
for perjury. On the other hand, if the lawyer does not exercise control over
the proof, the lawyer participates, although in a merely passive way, in deception
of the court.

[9] Three resolutions of this
dilemma have been proposed. One is to permit the accused to testify by a narrative
without guidance through the lawyer's questioning. This compromises both contending
principles; it exempts the lawyer from the duty to disclose false evidence but
subjects the client to an implicit disclosure of information imparted to counsel.
Another suggested resolution, of relatively recent origin, is that the advocate
be entirely excused from the duty to reveal perjury if the perjury is that of
the client. This is a coherent solution but makes the advocate a knowing instrument
of perjury.

[10] The other resolution of
the dilemma is that the lawyer must reveal the client's perjury if necessary
to rectify the situation. A criminal accused has a right to the assistance of
an advocate, a right to testify and a right of confidential communication with
counsel. However, an accused should not have a right to assistance of counsel
in committing perjury. Furthermore, an advocate has an obligation, not only
in professional ethics but under the law as well, to avoid implication in the
commission of perjury or other falsification of evidence. See Rule
1.2(d).

Remedial Measures

[11] If perjured testimony
or false evidence has been offered, the advocate's proper course ordinarily
is to remonstrate with the client confidentially. If that fails, the advocate
should seek to withdraw if that will remedy the situation. If withdrawal will
not remedy the situation or is impossible, the advocate should make disclosure
to the court. It is for the court then to determine what should be done--making
a statement about the matter to the trier of fact, ordering a mistrial or perhaps
nothing. If the false testimony was that of the client, the client may controvert
the lawyer's version of their communication when the lawyer discloses the situation
to the court. If there is an issue whether the client has committed perjury,
the lawyer cannot represent the client in resolution of the issue, and a mistrial
may be unavoidable. An unscrupulous client might in this way attempt to produce
a series of mistrials and thus escape prosecution. However, a second such encounter
could be construed as a deliberate abuse of the right to counsel and as such
a waiver of the right to further representation.

Constitutional Requirements

[12] The general rule--that
an advocate must disclose the existence of perjury with respect to a material
fact, even that of a client--applies to defense counsel in criminal cases, as
well as in other instances. However, the definition of the lawyer's ethical
duty in such a situation may be qualified by constitutional provisions for due
process and the right to counsel in criminal cases. Paragraph (3)(e) is intended
to protect from discipline the lawyer who does not make disclosures mandated
by paragraphs (a) through (d) only when the lawyer acts in the "reasonable
belief" that disclosure would jeopardize a constitutional right of the client.
See the definition of this term under the TERMINOLOGY section of these Rules,
supra.

Duration of Obligation

[13] A practical time limit
on the obligation to rectify the presentation of false evidence has to be established.
The conclusion of the proceeding is a reasonably definite point for the termination
of the obligation. After that point, however, the lawyer may rectify the consequences
as provided in Rule 1.6(b)(2).

Refusing to Offer Proof Believed to Be False

[14] Generally speaking, a
lawyer has authority to refuse to offer testimony or other proof that the lawyer
believes is untrustworthy. Offering such proof
may reflect adversely on the lawyer's ability to discriminate in the quality
of evidence and thus impair the lawyer's effectiveness as an advocate. In criminal
cases, however, a lawyer may, in some jurisdictions, be denied this authority
by constitutional requirements governing the right to counsel.

Ex Parte Proceedings

[15] Ordinarily, an advocate
has the limited responsibility of presenting one side of the matters that a
tribunal should consider in reaching a decision; the conflicting position is
expected to be presented by the opposing party. However, in an ex
parte proceeding, such as an application for a temporary restraining
order, there is no balance of presentation by opposing advocates. The object
of an ex parte proceeding is nevertheless to yield a substantially just result.
The judge has an affirmative responsibility to accord the absent party just
consideration. The lawyer for the represented party has the correlative duty
to make disclosures of material facts known to
the lawyer and that the lawyer reasonably
believes are necessary to an informed decision.

Model Code Comparison

Rule 3.3(a)(1) is substantially identical to DR 7-102(A)(5),
which provides that a lawyer shall not "knowingly make a false statement of
law or fact."

Rule 3.3(a)(2) is implicit in DR 7-102(A)(3), which provides
that "a lawyer shall not ... knowingly fail to disclose that which he is required
by law to reveal."

Rule 3.3(a)(3) is identical to DR 7-106(B)(1).

With regard to Rule 3.3(a)(4), the first sentence of this
subparagraph is similar to DR 7-102(A)(4), which provides that a lawyer shall
not "knowingly use" perjured testimony or false evidence. The second sentence
of Rule 3.3(a)(4) resolves an ambiguity in the Code concerning the action required
of a lawyer when he discovers that he has offered perjured testimony or false
evidence. DR 7-102(A)(4), quoted above, does not expressly deal with this situation,
but the prohibition against "use" of false evidence can be construed to preclude
carrying through with a case based on such evidence when that fact has become
known during the trial. DR 7-102(B)(1), also noted in connection with Rule
1.6, provides that "a lawyer who receives information clearly establishing
that ... his client has ... perpetrated a fraud upon ... a tribunal shall if
the client does not rectify the situation ... reveal the fraud to the ... tribunal...."
Since use of perjured testimony or false evidence is usually regarded as "fraud"
upon the court, DR 7-102(B)(1) requires disclosure by the lawyer in such circumstances.
However, some states, but not Maryland, amended DR 7-102(B)(1) in conformity
with an ABA recommended amendment to provide that the duty of disclosure does
not apply when the "information is protected as a privileged communication."
This qualification may have been empty, for the rule of attorney-client privilege
has been construed to exclude communications that further a crime, including
the crime of perjury. On this interpretation of DR 7-102(B)(1), the lawyer has
a duty to disclose the perjury.

Rule 3.3(c) confers discretion on the lawyer to refuse
to offer evidence that he "reasonably believes" is false. This gives the lawyer
more latitude than DR 7-102(A)(4), which prohibits the lawyer from offering
evidence the lawyer "knows" is false.

There is no counterpart in the Code to paragraph (d).

Paragraph (e) also has no counterpart in the Code, but
recognizes an implicit exception to making disclosures which would result in
violating the constitutional rights of an accused.

CODE OF PROFESSIONAL CONDUCT COMMITTEE COMMENT

The purpose of Paragraph E of this rule is to permit lawyers to appear for clients in a limited manner and to alert the court and opposing counsel of that limited role.

In New Mexico courts, attorneys and self-represented litigants are held to the same standards. New Mexico courts are lenient with both attorneys and self-represented litigants when deemed appropriate so that cases may be decided on their merits. Attorneys may give technical assistance and, when not prohibited by the rules of the tribunal, may prepare, without attribution, papers for filing by a self-represented litigant without violating the duty of candor. Even though an attorney's role may be limited to drafting a single document, the attorney is, however, bound by all of the rules that govern attorney conduct, including, but not limited to Rule 16-303(A)(1) NMRA (stating that an attorney shall not knowingly make a false statement of law or fact to a tribunal). Caveat: Current Federal practice prohibits the filing of anonymously drafted documents. See, e.g., Duran v. Carris, 238 F.3d 1268, 1271-73 (10th Cir. 2001).